Bell v. State , 92 Tex. Crim. 342 ( 1922 )

Appellant was convicted in the Criminal District Court of Tarrant County of the offense of manufacturing liquor, and his punishment fixed at four years in the penitentiary.

We know of no law in this State to justify the quashing of an indictment upon the ground that illegal testimony was heard by the grand jury returning such indictment. There was no error in the action of the lower court in refusing to quash the indictment in the instant case based upon said proposition.

It is not necessary that the indictment allege that the manufacture of the liquor in question was not for medicinal sacramental, scientific or mechanical purposes. Under the amended Dean act, Chapter 61, General Laws, First and Second Called Session, Thirty-seventh Legislature, p. 233, the manufacture of intoxicating liquor is forbidden, and in a separate section from that containing the definition of the offense it is provided that if such manufacture be for medicinal, sacramental, etc., purposes, and after a permit has been secured for so doing, such act shall not be punishable under the laws of this State. We are of opinion that it is not now necessary for an indictment charging a violation of the Dean law as under said amendment, to negative the exceptions which are referred to. The instant prosecution was for an act alleged to have been committed since the taking effect of said amended law.

The statement of appellant, or his brother in the presence of appellant, to the effect that the officers should not arrest one McMillan for this offense, that the outfit found by the officers "belongs to us," meaning himself and his brother, was properly admitted as a part of the res gestae. The officers had just discovered the still then in operation for the manufacture of liquor, and along with it a large number of barrels of mash and other things connected with said illegal business. Part of the mash was boiling in a large container, and the whisky was dripping from the mouth of a coil at the lower end of a barrel of water. The rule of res gestae seems to extend and to include statements of parties then engaged in the commission of the criminal act. In this class might be included the statement of thief caught in possession of stolen property, or a burglar found red-handed in the act of entering a house or removing property therefrom, and we have no doubt of the application of the rule of res gestae to statements made by one found engaged in the manufacture of liquor, or in such proximity thereto as to fall within every reasonable deduction of his connection therewith. With us the rule of res gestae is superior to that which calls for the exclusion of the statements of one under arrest. Bronson v. State, 59 Tex.Crim. Rep.; Gowan v. State, 64 Tex.Crim. Rep.; Hickman v. State, 65 Tex. Crim. 583, 145 S.W. Rep., 914; Powers v. State, 23 Texas Crim. App., 42.

We are unable to perceive any reversible error in the refusal of the court to permit a State witness to answer appellant's question which was as follows: "You said you had a search warrant?" We are not given any fact which would have appeared as the result of the answering of such question by said witness, the rejection of which was or could have been hurtful to appellant. We have examined the testimony carefully. Appellant was known under the name of Joe Bell. The officers procured a search warrant to search the premises of Ernest and Joe Bell. They found in the loft over the house a large quantity of mash, a still in operation, intoxicating liquor manufactured and being manufactured, and were told by appellant and his brother that the outfit belonged to them.

Appellant's bill of exceptions No. 3 complains of the refusal of the trial court to draw the jury in accordance with the provisions of Article 5158 1/2 f of the Revised Statutes of 1920. From said bill it appears that before the case went to trial appellant filed and presented to the court a written request as follows:

"To the Honorable George E. Hosey, Judge of said Court:

Now comes the defendant, Leslie Bell, and moves the court on the call of this case to have the jury regularly drawn in open court as is required by Revised Statute 1920, article 5158 1/2 f, which motion he will renew on his announcement of ready, and after he had announced ready for trial.

Wherefore, the defendant prays your Honor to have the jury drawn in open court, as the law requires.

Leslie Bell, Defendant."

After setting out this written request said bill proceeds with the following statement:

"Which motion the court, on considering, in all things overruled and permitted the jury to be selected by the officer and brought into court, and refused to draw said jury names from the hat as requested, to which action of the court the defendant then and there in open court excepted and here now tenders his bill of exceptions."

Article 5158 1/2 f was enacted in 1919, and is applicable to the Criminal District Court of Tarrant County. It contains the following: "Provided however, that the trial judge, upon the demand of any party to any case reached for trial by jury, or of the attorney for any such party, shall cause the names of all the members of the general panel available for service as jurors in such case, to be placed in a hat or other receptacle and well shaken and said trial judge shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such case, and such names shall be transcribed in the order drawn on the jury list from which the jury is to be selected to try such case. (Acts 1917, ch. 78, sec. 7; Acts 1919, ch. 6, sec. 1.)"

We know of no reason, nor is any assigned, for upholding the refusal of the right to have the names drawn in the manner directed by this statute. It was requested. It was refused. A plain right given by law was denied. The case will be reversed.

Reversed and remanded.

ON REHEARING. October 11, 1922.